Neither Fish Nor Fowl: Administrative Judges in the Modern Administrative State

Windsor Yearbook of Access to Justice, Vol. 28, No. 2, 2010

FSU College of Law, Public Law Research Paper No. 518

17 Pages Posted: 14 Apr 2011

See all articles by Linda Jellum

Linda Jellum

Mercer University - Walter F. George School of Law

Russell L. Weaver

University of Louisville - Louis D. Brandeis School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: 2010

Abstract

This article examines the role of administrative adjudication in the United States constitutional system. It begins by noting that such adjudication fits uncomfortably within a system of divided powers. Administrative judges, including administrative law judges [ALJs] (who have the highest level of protection and status), are considerably more circumscribed than ordinary Article III judges. Indeed, administrative judges are usually housed in the agencies for which they decide cases, rather than in independent adjudicative bodies, and they do not always have the final say regarding the cases they decide. In many instances, the agency can appeal an adverse administrative judge’s decision directly to the head of the agency, and the agency head retains broad power to overrule the administrative judge’s determinations. In other words, the agency can substitute its judgment for that of the administrative judge regarding factual determinations, legal determinations, and policy choices. As a result, many administrative adjudicative structures involve difficult trade-offs between independence, political control, and accountability. This article examines issues related to the status and power of administrative judges, as well as the constraints that have been imposed on administrative adjudicative authority, and explores whether those constraints continue to serve the purposes for which they were originally imposed.

Keywords: Administrative Law, ALJ, Administrative Law Judge

Suggested Citation

Jellum, Linda and Weaver, Russell L., Neither Fish Nor Fowl: Administrative Judges in the Modern Administrative State (2010). Windsor Yearbook of Access to Justice, Vol. 28, No. 2, 2010 ; FSU College of Law, Public Law Research Paper No. 518. Available at SSRN: https://ssrn.com/abstract=1808980

Linda Jellum (Contact Author)

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Ave
Macon, GA 31207-0001
United States

Russell L. Weaver

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States
502-852-6559 (Phone)
502-852-0862 (Fax)

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